De-Mail Act

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Basic data
Title: De-Mail Act
Abbreviation: [De-Mail-G] (not official)
Type: Federal law
Scope: Federal Republic of Germany
Issued on the basis of: Art. 74 para. 1 no. 11 GG
Legal matter: Commercial administrative law ,
IT law
References : 206-4
Issued on: April 28, 2011
( BGBl. I p. 666 )
Entry into force on: May 3, 2011
Last change by: Art. 14 G of November 20, 2019
( Federal Law Gazette I p. 1626, 1636 )
Effective date of the
last change:
November 26, 2019
(Art. 155 G of November 20, 2019)
GESTA : B030
Please note the note on the applicable legal version.

The De-Mail Act of April 28, 2011 is a German federal law that regulates the providers of De-Mail services and thus the services they provide. It is part of commercial administrative law .

Content and purpose of the law

content

The law regulates the authorization and the work of so-called De-Mail service providers, i.e. the providers of "services on an electronic communication platform that are intended to ensure secure, confidential and verifiable business transactions for everyone on the Internet", Section 1, Paragraph 1 De -Mail law.

Legislative objective

As evidenced by the reasons for the law, the purpose of the law is to establish a form of electronic communication based on conventional email technology, which combines the advantages of email (simple, fast, inexpensive and location-independent communication) with those of letters (confidentiality and reliability). combined. De-Mail uses signature and encryption techniques for this . Since these are hardly widespread despite intensive government funding, especially for electronic signatures , the De-Mail Act makes service providers responsible. On the one hand, you have to ensure that communication between the user and them and between the providers themselves is encrypted. On the other hand, they have to identify the users and enable the respective communication partners to prove the communication.

The legislature hopes that the introduction of De-Mail will provide considerable relief for both public administrations and businesses. In sample calculations, which are largely based on assumptions, there is a potential savings in the two or three-digit million range in material costs alone, postage not yet included. The costs associated with using the services are still uncertain. The law does not make any requirements. The currently approved providers sometimes provide for costs per mail slightly below the postage, possibly supplemented when using special shipping options, and sometimes flat rates, especially for bulk mailers.

"Administrative delivery supplement law"

The background to the law is the need for "electronic delivery ". The EC Services Directive requires the possibility of fully electronic processing of administrative contacts, from general information about the first contact, the application and possible proof of the necessary requirements to the transmission of the decision of the authorities. Until now, the delivery of electronic documents required the cooperation of the addressee. A verifiable "confrontational" transmission without or even against his will was missing. The main use case for letter post is registered mail, which according to § 180 sentence 2 ZPO is deemed to have been received at the moment the postman throws it into the recipient's mailbox. The deliverer notes the date (and, if possible, time) of the posting on the delivery document. He forwards this to the sender, who thus has a public document that proves the receipt of the document in a court-proof manner, § 172 ZPO and § 418 .

This model simulates the De-Mail Act as "De-Mail registered". For this purpose, it standardizes individual confirmations in Section 5 (7) to (10) that the De-Mail service providers create and sign upon request. This includes the "confirmation of receipt" according to paragraph 8 of the regulation, which corresponds to the registered mail, but also the collection confirmation according to paragraph 9, with which the provider notifies an authority at the request of the latter when the recipient will be at his De-Mail after receiving the message in the mailbox Account securely registered in accordance with Section 4 of the De-Mail Act. According to § 5a VwZG, this is sufficient as proof of the delivery of official letters. With a view to this, Gerald Spindler spoke vividly of the “Administrative Delivery Supplementary Act” in the expert hearing.

legislation

The law, which was drawn up with the significant involvement of Alexander Roßnagel , emerged from the BMI'sCitizen Portals ” project . It was first introduced to the Bundestag as a draft Citizens Portal Act in the 16th legislative period and met with considerable resistance from, among others, the data protection officers of the federal and state governments and the Bundesrat . This is probably one of the reasons why the law could not be completed by the end of the legislative period and was therefore subject to discontinuity .

At the beginning of the 17th legislative period it was introduced this time under the current title, taking into account some of the serious criticisms of the data protection officer and the Federal Council. In the public hearing, numerous experts voiced their criticism, including the Federation of German Consumer Organizations and the Chaos Computer Club as well as the German Notar Association , while industry representatives such as BITKOM praised the law as the right step. The law was passed with the votes of the government coalition on February 24, 2011, approved by the Federal Council on March 18, 2011 and executed on April 28, 2011. It came into force on May 3, 2011 after publication in the Federal Law Gazette as Article 1 of the law of April 28, 2011 ( Federal Law Gazette I p. 666 ).

The De-Mail Act was changed by Art. 2 of the “ E-Government Act ” of July 25, 2013 ( Federal Law Gazette I pp. 2749, 2752 ). This law corrected an editorial mistake in Section 2, changed the requirements for the identification of De-Mail users in Section 3 and expanded the requirements of Section 7 (3) for access by the user. The amendment to Section 5 on the “sender-confirmed” De-Mail did not come into force until July 1, 2014, Article 31 (2) of the law of July 25, 2013.

The law was last changed by the law on structural reform of the federal fee law of August 7, 2013 ( Federal Law Gazette I p. 3154, 3161 ). This replaced in § 24 para. De-Mail law the concept of "official act" by the "individually attributable to public service", and replaced in para. 2 context as directly related to the entered override 1 no. 1 Administrative Expenses Act by on the now Federal Fees Act .

The De-Mail Cost Ordinance of February 9, 2012 ( Federal Law Gazette I p. 267 ) based on Section 24 of the De-Mail Act came into force on November 14, 2011; it was also changed accordingly by the aforementioned law.

Both provisions will expire on August 14, 2016, Art. 3 Paragraphs 8 and 9 as well as Art. 5 Paragraph 2 of the law of August 7th, 2013 ( Federal Law Gazette I p. 3154, 3199 ).

overview

The 25 paragraphs of the law are divided into six sections. The first names the content of the law in § 1 and defines the BSI as the authority responsible for monitoring the providers in § 2 . The §§ 3 to 8 of the second portion, the mandatory and optional offers an describe De-mail service start Meanwhile, the third portion in the §§ 9 to 16 , the individual requirements for the providers in the operation of their service contains. The fourth section regulates in §§ 17 to 19 the prerequisites such as the procedure for the accreditation of the providers or the equality of foreign offers. The fifth section regulates official supervision in Sections 20 and 21 , while the sixth with Sections 22 to 25 contains final provisions, including Section 23 a regulation on fines and Section 24 authorizing the Federal Ministry of the Interior to issue De-Mail -Cost regulation.

Formal

The law is largely similar to the signature law of 1997 , including the regulatory approach . The law seeks to ensure that the desired services are offered by officially monitored private individuals. It defines requirements for the services and their providers and enables the latter to prove to the supervisory authority that they meet them. For this you have to provide the confirmations of certified auditors and test centers, as well as proof of sufficient coverage for possible liability cases. If they succeed, they will be accredited by the authority and thus admitted to the De-Mail network.

In detail

De-Mail services

The core of every De-Mail service is the mailbox and mailing service in accordance with Section 5 of the Act. This must be supplemented with the secure identification of each user according to § 3 , primarily by checking the identity card for natural persons and by requesting an official register extract for legal persons. It is also mandatory to offer users the option of logging on to the service in accordance with § 4 in the sense of “securely” in the sense that the login requires the possession of a signature card or an electronic identity card in addition to knowing a password . At the request of the user, however, it must only be possible to log in with a user name and password. Finally, the provider must keep a public directory of participants, Section 7 , whose use (active as well as passive) is, however, also optional for the users.

The identity confirmation service according to § 6 and the secure document filing according to § 8 ("De-Safe") can, but do not have to be offered.

Required accreditation

De-Mail services are only provided by accredited providers. Only those who can prove their reliability under commercial law, fulfillment of the technical, organizational and data protection requirements and sufficient financial security within the framework of the accreditation will be accredited by the competent authority and may offer the services under this name.

However, this does not affect the possibility of non-accredited providers to offer corresponding services under a different name. The accreditation requirement therefore does not violate either the E-Commerce or the Services Directive.

Currently (as of February 26, 2016) four providers are accredited: 1 & 1 DE-Mail GmbH, Mentana-Claimsoft GmbH, T-Systems International GmbH and Telekom Deutschland GmbH. They only offer the mandatory basic services, i.e. the post office box and mailing service as well as the directory service.

Implementation of supervision

The service providers are subject to supervision by the BSI ( § 2 and § 20 De-Mail-G). This monitors compliance with the law and may temporarily prohibit operation in the event of violations or, as a last resort, withdraw accreditation. It can punish violations according to § 23 by means of a fine.

The BSI also has the task of formulating the technical and organizational requirements for providers and their services in technical guidelines and publishing them in the Federal Gazette. To this end, it works with the Federal Data Protection Officer and the De-Mail Standardization Committee, to which the providers also belong, Section 18 (2) and Section 25 De-Mail-G. The technical guideline 01201 De-Mail of the Federal Office for Information Security is currently relevant.

Access opening

The use of the service by the user is voluntary. The transmission of electronic documents is only permitted if the recipient has opened access for this purpose (so-called access opening). In § 7 para. 3 of the De-Mail Act, it states:

"(3) The publication of the De-Mail address in the directory service at the request of the user as a consumer in accordance with paragraph 1 alone does not count as opening access within the meaning of Section 3a Section 1 of the Administrative Procedure Act, Section 36a Section 1 of the First Book of the Social Code or of § 87a paragraph 1 sentence 1 of the tax code. At the request of the user, the accredited service provider must publish the declaration of the user in the directory service with a suitable addition, to open access within the meaning of Section 3a of the Administrative Procedure Act, Section 36a (1) of the First Book of the Social Security Code and Section 87a (1) sentence 1 of the Tax Code want. The publication of the De-Mail address of the user as a consumer with this addition in the directory service is considered to be the opening of access. Sentence 2 applies accordingly to the user's decision to withdraw the access opening. "

criticism

Even at the drafting stage, the law met with some considerable criticism from practice. Lawyers and notaries questioned the need for an additional communication room, which is deliberately designed to be incompatible with conventional e-mail services and which does not include existing electronic communication projects such as ELSTER and the EGVP . With regard to ensuring the confidentiality of the messages sent, it was criticized that the law does not provide for end-to-end encryption ; Consumer advocates, in turn, objected to the fact that the law excludes the portability of De-Mail addresses from provider to provider.

literature

Web links

Individual evidence

  1. a b BT-Drs. 17/3630 (PDF file; 874 kB)
  2. a b BT-Drs. 16/12598 (PDF file; 866 kB)
  3. See the price list of Mentana Claimsoft GmbH ( memento of the original from April 19, 2012 in the Internet Archive ) Info: The archive link has been inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF file; 265 kB) and the price list of Telekom GmbH ( memento of the original from April 19, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. ; see also the overview at http://heise.de/-1563913 and at http://www.computerwoche.de/netzwerke/web/2507959/index6.html @1@ 2Template: Webachiv / IABot / www.mentana-claimsoft.de @1@ 2Template: Webachiv / IABot / de-mail.telekom-dienste.de
  4. Log  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF file; 221 kB) of the expert hearing on February 7, 2011, p. 15 there@1@ 2Template: Toter Link / www.bundestag.de  
  5. ^ Text of the law regulating De-Mail services and amending other regulations
  6. De-Mail cost regulation
  7. See e.g. Knopp / Wilke / Hornung / Laue, MMR 2008, 723/727
  8. Mentana-Claimsoft GmbH ( Memento of the original from April 30, 2012 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.mentana-claimsoft.de
  9. ^ T-Systems International GmbH
  10. Telekom Deutschland GmbH ( Memento of the original from April 19, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot / de-mail.telekom-dienste.de
  11. BSI: List of accredited De-Mail providers
  12. TR 01201 ( Memento of the original from January 24, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. of March 23, 2011 ( BAnz AT40 2011 B1)  @1@ 2Template: Webachiv / IABot / www.bsi.bund.de
  13. See the opinions of the experts ( memento of the original from August 26, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. and the log  ( page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. (PDF file; 221 kB) of the expert hearing on February 7, 2011 as well as the cited contribution by Lapp @1@ 2Template: Webachiv / IABot / www.bundestag.de@1@ 2Template: Toter Link / www.bundestag.de